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The $100 million case of a 2-year-old Hollywood, Fla., girl who nearly drowned at her apartment complex in 2001 because of a broken latch on the pool gate has been settled. The dollar amount was not disclosed. In January 2003, a Broward Circuit Court jury awarded $100 million to Loren Hinton and her parents, Lonnie and Lorri Hinton, as a result of the accident. The apartment complex owner was challenging the verdict on grounds that the trial judge failed to enforce a pretrial settlement agreement and failed to give the jury proper instructions about parental responsibility. The case was privately settled Thursday. Oral arguments had been scheduled for Tuesday before the 4th District Court of Appeal. As a result of the case, state Sen. Debbie Wasserman Schultz, D-Weston, sponsored legislation to toughen Florida’s pool safety laws protecting children. It would have required all pool owners, except for owners of single-family owners, to follow strict fence enclosure and pool gate guidelines. This spring, the Senate passed the bill but it died in the House. Attorneys on both sides did not return phone calls seeking comment. The case arose from a May 2001 accident. Lonnie Hinton was outside barbecuing at the apartment complex, where the family lived, while Loren and her 6-year-old brother played nearby. Loren wandered off toward the pool area, pushed open the broken gate and fell into the swimming pool. A tenant found her unconscious in the pool. Loren was resuscitated, but she suffered extensive brain damage because of lack of oxygen. Since the accident, she has been in a vegetative state and will require 24-hour medical care for the rest of her life. At trial, the Hintons’ lawyer, Michael Haggard, a partner at Haggard Parks Haggard & Bologna in Coral Gables, Fla., argued that the apartment complex owner, the 2331 Adams Street Corp., was negligent because it had received repeated complaints about the broken latch on the pool gate but did nothing to fix it. The defense claimed that Lonnie Hinton was responsible because he left his daughter unattended. Hinton testified at trial that he assumed the other neighborhood parents would supervise his children because the tenants always looked out for each other. The jury deliberated for six hours before finding the property owner 99 percent liable for the accident and Lonnie Hinton 1 percent liable. It awarded the Hintons a total of $100 million in damages for lost wages, past and future medical expenses, pain and suffering and loss of consortium. The property owner appealed the verdict to the 4th District Court of Appeal. In its briefs, it argued that Broward Circuit Judge Charles Greene, who presided over the trial, erred by refusing to enforce a settlement agreement it claimed the parties reached more than a year before trial. Last Thursday, attorneys for the apartment complex and the Hintons filed a joint motion to have the oral arguments removed from the 4th District Court of Appeal’s calendar. In the motion, the parties said they had reached a preliminary settlement and requested 60 days to finalize the terms of the deal. Judge Greene approved the preliminary settlement that day. Philip Burlington, appellate counsel for the Hintons said the parties had been in discussions to settle the case since the defendant’s motion for a new trial was denied following the jury verdict in January 2003. But he said the imminence of the oral argument before the 4th District Court of Appeal was what brought about the settlement. “Oral arguments are like just before trial, suddenly everybody gets serious,” said Burlington, a solo West Palm Beach practitioner who declined to comment on the terms of the settlement. According to appellate briefs filed before oral arguments were canceled, the apartment complex argued the $100 million verdict should be overturned because of a pretrial settlement agreement and improper jury instructions during trial. On Oct. 5, 2001, the Hintons’ lawyers sent a letter to the property owner’s liability insurer, demanding payment of the $1 million policy limit within 20 days. In return, the Hintons would release the property owner from future liability. On the day the Hintons’ settlement offer expired, the property owner’s lawyer responded with a letter saying they accepted the offer but would not be able to get the money to them for another few days. On Nov. 5, 2001, Adams Street hand-delivered a $1 million check to Haggard’s office. But Haggard rejected the payment because it was sent after the Oct. 25 deadline. On appeal, the property owner’s lawyers argued that the 20-day deadline was arbitrary and that Hintons had suffered no harm in receiving the money a few days late. The only reason the money wasn’t disbursed right away was because of logistical problems in getting the required approval from the insurance company’s various underwriters. “There was no prejudice to the Hintons from the short delay because Loren was receiving appropriate medical care and because little or no work had been done in the case at that point,” the property owner’s appellate lawyer, Elliot Scherker, a shareholder at Greenberg Traurig in Miami, wrote in the appellate brief. On behalf of the Hintons, Burlington argued that the terms of the settlement offer were not fulfilled because the money was not paid within the 20-day deadline. Therefore, there was no enforceable contract. The Hintons countered that Florida law only requires parents to exercise “reasonable care” in protecting their children from harm. Therefore, Judge Greene was correct in giving the standard jury instruction that the jury could assess whether Lonnie was partially responsible for the accident based on what a reasonable person would have done under the circumstances. “The very reason for requiring a self-latching, self-closing gate is because it is foreseeable that children will wander away from their parents,” Burlington wrote in the appellate brief. The property owner also argued that Judge Greene erred by refusing to let its expert neurologist testify that Loren most likely would live only five to 10 years because of her medical condition. Because the neurologist’s testimony was excluded, the jury relied on the Hintons’ expert witness in determining the amount to award for future medical care. The Hintons’ expert said Loren had a 71-year life expectancy, based on statistics from the U.S. Department of Health and Human Services. That greatly increased the damages. Burlington argued, however, that Greene correctly excluded that testimony because it was based on what he had read in medical journals and not on his professional experience. The property owner also disputed an additional $5 million the Hintons’ expert economist added to his assessment of Loren’s projected medical care expenses because the family was planning to move from Florida to San Diego. The Hintons claimed the calculation of additional damages was appropriate because it was based on the consumer price index. According to the CPI, consumer prices in San Diego were 12 percent higher than in Florida.

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